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Final Environmental Impact Reports Posts


General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence for CEQA Review

Monday, January 8th, 2018

Packwood Shopping Center in the Visalia’s neighborhood commercial zone and subject to the 40,000 sq.ft. cap on tenants. (The Registry SF)

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting the cap would cause grocers to refuse to locate in the Neighborhood Commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the city’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming the potential for urban decay was not adequately addressed in the EIR. On May 9, 2016, the trial court denied the petition for writ of mandate. The property management company appealed the decision.

Appellant claimed the EIR was insufficient for failing to consider potential for urban decay where large stores would be discouraged from establishing themselves in the neighborhood under the new restriction. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

Appellant’s main evidence that it was essential the EIR consider urban decay was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap will cause grocers to refuse to locate in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” His evidence for these claims was (1) he is personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at the site; (3) a recent line of 10,000 – 20,000 square feet stores were unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the entirety of the letter to be speculative, not raising to the level of substantial evidence on which a fair argument of urban decay could be predicted, a standard set by CEQA. First, the limit of his personal knowledge does not preclude the existence of stores that may come to the area or that some stores would be willing to have an atypical sized store. Further, the fact that other stores failed, some a quarter the size of the cap, is not evidence that stores will fail in the city in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the city’s general plan internally inconsistent for discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, that does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Fifth District Court of Appeal affirmed the trial court judgement.

Key Point:

Where CEQA is concerned with environmental impacts, a claim for urban decay supported only by economic impacts is insufficient. Urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”

KEY POINT

The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal. App. 4th 515

Tuesday, May 22nd, 2012

In 1994, the City of San Diego (City) certified an EIR and approved a 665-acre mixed-use development plan. In 2008, the City was approached by a developer who wished to build condominiums on the last remaining open space within that area. The City prepared a water supply assessment (WSA) and an addendum to the 1994 EIR. Petitioner filed a petition for writ of mandate arguing that the City failed to comply with the Water Code in adopting the WSA, and that the City should have prepared a supplemental EIR because there was new information and changed circumstances pertaining to water supply and climate change. The trial court found for the City. The Fourth District Court of Appeal affirmed. In addressing the Petitioner’s first point regarding the Water Code, the Court held that the WSA was properly approved by the City. While notices for the CEQA hearings did not reference the WSA, the Court concluded no authority mandates the CEQA notices to specifically reference the WSA. The Court also held that the Petitioner failed to provide new information regarding changes in water supply and climate change. Additionally, the Court explained that the Petitioner delivered its information in a disorderly way by presenting thousands of unorganized documents last minute, essentially “document dumping.” The Court explained that objections must be specific so as to provide the City with a chance to evaluate and respond.

Key Point:

For the purposes of Public Resources Code section 21166, “new” information only includes information that could not have been known and raised when an EIR was certified. Additionally, in presenting evidence to an agency, a Petitioner cannot expect, and CEQA does not require, a lead agency to pore through thousands of documents to find and respond to information that arguably supports Petitioner’s claims.

Final Environmental Impact Reports Must Include Responses to Public Comments, but Need Not Include Economic Feasibility Analyses

Sunday, January 22nd, 2012

The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (January 4, 2012) 202 Cal. App. 4th 603

A citizens group brought suit against the City of Carmel-by-the-Sea challenging the city’s Final EIR prepared in connection with the sale of an historic property known as the Flanders Mansion.  It its action, The Flanders Foundation claimed that the city did not adequately address the Surplus Lands Act, the city was required to include an economic feasibility analysis in the Final EIR and the city failed to respond adequately to a public comment on the Draft EIR.  The court rejected the trial court’s ruling regarding the Surplus Lands Act and the economic feasibility analysis; however, the court agreed with the trial court that the city failed to adequately respond to a Draft EIR comment.

One of the comments submitted on the Flanders Mansion Draft EIR proposed an alternative to the project and suggested that such alternative would mitigate environmental impacts as compared to the project.  The Final EIR failed to provide any response to this comment.  The court reaffirmed a lead agency’s duty to respond to public comments on an EIR and held that where a public comment raises a “significant environmental issue,” the lead agency must at least provide a detailed response explaining why the comment was not accepted.  The Final EIR was faulty for its failure to do so.

The Flanders Foundation also alleged that the Final EIR was inadequate for neglecting to include economic analyses.  On this claim, the court determined that the city was not required to include the feasibility analysis prepared for the project in the Final EIR because such analysis did not discuss or address any environmental issues.  The feasibility analysis was available for public review and was part of the administrative record.  Thus, the court held that substantial evidence in the record supported the infeasibility findings and the city’s statement of overriding considerations.  The Flanders Foundation conceded that there are several cases with this same holding, however, they felt those decisions were incorrect.  This court disagreed with The Flanders Foundation and reaffirmed those previous holdings.

Finally, The Flanders Foundation argued (and the trial court agreed) that the Final EIR was inadequate for failing to analyze the potential environmental impacts of the possible uses a potential purchaser might make of the Flanders Mansion.  Petitioner’s argument was based on the premise that a future owner would not be required to comply with CEQA-mandated mitigation measures in the city’s MMRP and the conservation easement in the recorded CC&R’s.  This court disagreed with the trial court and held that the Surplus Land Act “contains no provision that explicitly prohibits a discarding agency from selling surplus property that is subject to mitigation conditions and conservation easements.”  Those mitigation conditions and conservation easements were created to comply with CEQA and are not negotiable.  The Surplus Land Act clearly provides that it shall not be applied if its provisions conflict with any other provision of statutory law.  Therefore, the court overturned the trial court’s ruling and held that in a sale of surplus land, there is nothing in the Surplus Lands Act that can be interpreted to exclude CEQA-required mitigation conditions and conservation easements to be included in the sale.

Key Points:

Public agencies must respond to comments that raise “significant environmental issues.”  Because an economic feasibility analysis does not address environmental issues it need not be included in the EIR as long as it is included in the administrative record.

Written By: Tina Thomas and Michele Tong

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The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.